Agency Rulings

Decision No. 472-A-1996

August 22, 1996

APPLICATION by Air Tindi Ltd. for a licence pursuant to section 94 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) to operate a Class 9-4 Charter non-scheduled international service using fixed wing aircraft in Groups B, C, D, E and F*. ( * By letter dated August 6, 1996, the applicant withdrew its request with respect to the authority to use fixed wing aircraft in Group F.)

File No. M4895/A358-4-1

Docket No. 950089

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Air Tindi Ltd. (hereinafter the applicant) has applied to the National Transportation Agency (hereinafter the NTA) pursuant to the National Transportation Act, 1987 (hereinafter the NTA, 1987) for a licence to operate the service set out in the title. The application was complete and ready for processing on February 6, 1995.

At that time, the NTA also had before it a separate application for authority to also use fixed wing aircraft in Group E under the applicant's existing domestic NTA Licence No. 890120 which authorized the operation of a Class 4 Charter domestic service using fixed wing aircraft in Groups A, B, C and D from a base at Yellowknife, Northwest Territories.

Notice of the application was published on March 10 and 20, 1995 in the newspapers of the areas concerned. In addition, selected air carriers and others who may have an interest in the proceedings were notified of the application. No interventions opposing the granting of the application were filed with the NTA.

By letter dated May 5, 1995, the NTA advised the applicant that it had considered the application and determined that, pursuant to subsection 94(1) of the NTA, 1987, it is in the public interest to issue a non-scheduled international licence to the applicant but only if the applicant completes its application by establishing, to the satisfaction of the NTA, that it meets the market entry requirements specified in paragraphs 94(1)(a) to 94(1)(c) of the NTA, 1987. At that time, the NTA also advised the applicant that if it satisfies the NTA within one year from the date of that letter that it meets those requirements, the NTA shall issue a non-scheduled international licence to the applicant.

In its Decision No. 375-A-1996 dated June 7, 1996, the NTA noted that the applicant had filed all of the material necessary to complete its application to add the additional authority to its domestic licence. Upon its review of the material filed in that application, the NTA also made its determination that it was satisfied that the applicant met the necessary market entry requirements for the additional authority. Accordingly, a new document of licence was issued to the applicant pursuant to Decision No. 375-A-1996 on June 7, 1996.

On July 1, 1996, the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) came into effect. Pursuant to section 195 of the CTA and to the Discontinuance and Continuance of Proceedings Order, 1996, SOR/96-383, proceedings relating to certain matters before the NTA, prior to the coming into effect of section 195, shall be dealt with by the Canadian Transportation Agency (hereinafter the Agency), pursuant to the provisions of the CTA. This proceeding is included in the Order as a matter to be dealt with pursuant to the provisions of the CTA.

The Agency notes that the material filed by the applicant to complete its application to add the additional authority to its domestic licence was the same material required to complete its application for a non-scheduled international licence authorizing the use of fixed wing aircraft in Groups B, C, D and E. The Agency is of the opinion that the applicant had met all of the existing requirements for licence issuance and, therefore, should have been issued a non-scheduled international licence at the same time as the amended domestic licence in June of 1996. However, such a licence was not issued at that time.

Pursuant to the provisions of the CTA, the Agency is authorized to issue licences to operate domestic or international air services only if it is satisfied that licence applicants meet five specific requirements. In addition to ensuring compliance with the three market entry requirements carried over from the NTA, 1987 (ie., that the Agency be satisfied that licence applicants are "Canadian", within the meaning of section 67 of the NTA, 1987, hold valid Canadian aviation documents and have the prescribed liability insurance in respect of the service to be provided under the licence), the CTA now requires that the Agency also be satisfied that certain new Canadian licensees both meet the minimum financial requirements prescribed in the Air Transportation Regulations, SOR/88-58, as amended, (hereinafter the ATR), and have not sold, either directly or indirectly, the proposed air services during the twelve months prior to obtaining their licences.

The ATR have also been amended to simplify the various classes of air services that may be operated by a Canadian air carrier under a non-scheduled international licence. In addition, the classes of aircraft have been amended. Accordingly, the Class 9-4 Charter non-scheduled international service using fixed wing aircraft in Groups B, C, D and E is now considered to be the following services: non-scheduled international service, small aircraft; non-scheduled international service, medium aircraft; non-scheduled international service, all-cargo aircraft.

In June of 1996, the applicant completed its application by filing material establishing that it meets the requirements set out in paragraphs 94(1)(a) to 94(1)(c) of the NTA, 1987. In addition, on August 6, 1996, the applicant filed an affidavit, sworn on July 30, 1996, attesting that within the preceding twelve months or since July 1, 1996, whichever is the shorter period, it did not contravene section 59 of the CTA to the effect that no person has sold, caused to be sold or publicly offered for sale in Canada transportation in respect of the applied for air service without holding the required licence. At the same time, the applicant also filed an undertaking, executed on July 30, 1996, not to contravene section 59 of the CTA prior to the issuance of the applied for licence. The Agency is not aware of any evidence that the applicant contravened section 59 of the CTA after July 1, 1996.

The Agency has reviewed the application and the material submitted by the applicant and is satisfied that the applicant meets the requirements set out in subparagraphs 73(1)(a)(i), (ii) and (iii) and paragraph 73(1)(b) of the CTA. In light of the special circumstances of this case, the fact that the applicant filed the material necessary to complete its application in June of 1996, prior to the coming into force of the CTA, and the Agency's opinion that the licence applied for under this application should have been issued in June of 1996, the Agency finds that compliance with subparagraph 73(1)(a)(iv) of the CTA is unnecessary in the present circumstances.

Accordingly, pursuant to paragraph 80(1)(c) of the CTA, the Agency hereby grants the applicant an exemption from the application of subparagraph 73(1)(a)(iv) of the CTA.

Accordingly, a licence to operate the following services will be issued to Air Tindi Ltd.

non-scheduled international service, small aircraft
non-scheduled international service, medium aircraft
non-scheduled international service, all-cargo aircraft

Pursuant to subsection 74(1) of the CTA, the Agency also deems it appropriate to include the terms and conditions set out below in the licence to be issued pursuant to this Decision.

The licence to be issued pursuant to this Decision shall be subject, in addition to the conditions prescribed by the ATR, to the requirements to hold a Canadian aviation document issued by the Minister of Transport, usually in the form of an Operating Certificate, and to have prescribed liability insurance coverage as set out in section 7 of the ATR, and to the following terms and conditions to which the licence is made subject pursuant to subsection 74(1) of the CTA:

The Licensee is authorized to transport traffic on a charter basis between Canada and any other country.